Claimant has included "without prejudice" information in witness statement

[BankFodder]

You can object to the without prejudice material but if strategically it is better to have everything admitted, then make an application to the judge asking that as the claimant has selectively included WP correspondence, you now want leave to disclose the whole of the exchange even though it is WP on the grounds that the claimant's disclosure is deliberately prejudicial. Use a form N244. Do not ask the other party for consent on this as it will be better for you to bring the claimant's cheating to the notice of the judge

 

As for the statements, if you believe them to be copied or created by the same person, then best to let it go until the trial - and then raise the matter when it is too late for the claimant to do anything about it. In other words, keep this up your sleeve for the mo.

 

You q.3 - it is up to you to point this out to the judge at trial when you produce evidence or arguments which disparage the statements.

 

Once again keep this up your sleeve until trial

[BankFodder]

 

I have looked everywhere online for information specific to the main query, but I can't find anything that explains what I need to know. Can anyone advise me, ideally with reference to relevant law info that I could cite if necessary?

 

 

 

I don't really understand why you didn't come here first. You've been with us since 2012. We would have saved you a lot of time.

 

Congrats on starting a small claim. Most people fight shy of it and put up with a lot of poor treatment as a result.

 

Maybe when it is over you can come back and tell people about your litigation experience - and hopefully encourage them to be more confident about it.

[BankFodder]

There is no rule that exchange of documents occurs on the same day. The only rule is that documents are disclosed before a certain deadline.

 

It sounds to me as if your opponent is now breaching the deadline and disclosing the documents late. In practice this will be allowed and at least you have some time to deal with it. Very often when you are dealing with debt collection agencies etc., they end up giving you documents about five minutes before the hearing. It is very unfair but the judge almost always allows the documents in.

 

The documents which has been disclosed so far can't be undisclosed so you include those in your calculations of what to do. If your opponent now produces further documents which contradict the earlier documents then you can refer to this to the judge and point out that your opponent seems to be tailoring his evidence to suit the circumstances.

 

Whatever you do, don't start overloading the judge with information. Keep it as short as possible. Keep your statements as short as possible. Keep your questioning as brief as possible. Make a point and then move on. Don't ask a question in cross-examination if you don't know what the answer is in advance. The cross examination is not for you to find out new information, it is used to bring the information to the attention of the judge. If you are cross-examining in order to find out the answers to questions that you have, then you are going on very dangerous ground and it shows that you are not fully ready. If you don't know the answer – then don't ask the question. This is a cardinal rule.

 

This is a small claim, the judge will want to get it over with fairly quickly and he will want to see the case moving along. You could have an excellent case but end up losing simply because you are taking too long to establish the right of the matter.

 

On the question of costs – yes if the other side is not litigated reasonably then there is a discretion to award costs.

 

If the judge finds in your favour, then you can ask the judge very gently if you could address him on the subject of costs. Then point out how you have bent over backwards to avoid this litigation and that how the litigation has been driven by the attitude of the other side who by their unreasonable behaviour and refusal to follow protocols or to hold dialogue have forced the matter into court to the inconvenience of both yourself and of the court.

 

If you're going to do this, then you ought to have a simple cost schedule already worked out. Make sure it is modest. Make sure it is fully detailed in terms of the number of hours you have spent, your actual expenses in phone calls, travel, postage etc. etc. Have it all very clearly express so the judge can look at it and within less than a minute understand what he's being asked to award and whether or not it is reasonable. If it gets more complicated than this and the judge will refuse to hear you. The judge may refuse to hear you on the question of costs anyway